Summary Impact Type

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Summary of the impact

1.1 was used in EU negotiations on EU Directives on procedural
rights for suspects and defendants as the `leading study in the field' to
address deficiencies in existing mechanisms;

1.2 informed the training of more than 250 judges, prosecutors and
lawyers from at least 23 EU member states regarding respect for and
implementation of procedural rights;

1.3 provided a template used by NGOs in other regions in their
investigations of procedural rights in practice; these include a
consortium of NGOs in six Latin America countries who are using it in
order to produce positive changes in regulation and practice.

Underpinning research

Following a failed attempt by the European Union (EU) to achieve
consensus on legislation to improve procedural rights for suspects and
defendants in criminal proceedings in the early part of the 21st
century the EU, under the Swedish presidency, adopted a `roadmap of
procedural rights' in 2009, which entailed a phased approach to
introducing legislation.

In preparation for the renewed attempt to introduce legislation, Ed Cape
(Professor of Criminal Law and Practice at UWE), together with colleagues
from the UK, Germany and the Netherlands, was commissioned by the European
Commission (EC) to examine the legal protection of suspects in seven EU
states (2005-2006) (see 3.1). This built on extensive prior
research by Cape, including on criminal legal aid contracting and an
evaluation of the pilot Public Defender Service in England and Wales (see
3.2 and 3.3). Conscious of the lack of empirical research on
procedural rights across EU jurisdictions, and recognising the value of
the first study, the EC commissioned a second piece of research which was
designed to provide evidence of: (a) the level of formal compliance by
Members States with ECHR standards and those to be considered for adoption
by the EU; (b) the level of compliance in practice; (c) the legal,
institutional and cultural factors critical in achieving compliance; and
(d) the interrelationship between ECHR and EU standards. This research
project (2007-2010) (see 3.4) broke new ground in conducting
comparative research on access to effective criminal defence in nine
European jurisdictions.

The research established:

2.1 that whilst the law of most (although not all) countries
complied with ECHR standards regarding procedural rights, there was
significant lack of compliance in practice, particularly at the
investigative stage;

2.2 that the police in most countries adopt a range of
rights-avoidance mechanisms, in respect of which enforcement mechanisms
were inadequate;

2.3 the importance of detailed regulations and procedures, and
effective enforcement mechanisms, in ensuring that procedural rights are
complied with;

2.4 the significance of the cultural practices and attitudes of
criminal justice professionals in ensuring that procedural rights are
respected;

2.5 that EU legislation, enforced by the European Court of
Justice, was likely to be more effective in establishing clear and
appropriate standards, and in ensuring compliance, than the ECHR.

The findings were crucial in helping the EU to determine what approach
should be adopted in the EU programme of reform, what reforms in Member
States would be necessary in order to comply with the EU Directives
resulting from the Roadmap, and what mechanisms would be necessary to
ensure compliance with that legislation.

In a further study, `Effective defence rights in LARN member countries'
(2010-2012), Cape was commissioned by the Open Society Justice Initiative
(OSJI, an international NGO) to develop the research methodology used in
the second study in order to examine access to effective criminal defence
in five eastern European jurisdictions (see 3.5).

Cape played a central role in the research design, implementation and
analysis in all of the studies, as well as in writing up the research.

3.2 L Bridges, E Cape, A Abubaker and C Bennett, Quality in
Criminal Defence Services: A Report on the Evaluation of the Legal
Service Commission's Pilot Project on Contracting Criminal Legal Advice
and Assistance (Legal Service Commission, London 2000). (Copy
available from UWE)

Details of the impact

4. 1.Shaping and influencing EU policy and legislation
In developing the roadmap on procedural rights the EC accepted the
findings in 3.1 that existing European Convention on Human Rights
(ECHR) standards were not met in practice. The interim results of 3.4
were presented at an EU Experts Meeting in March 2009, attended by
delegates from most EU Member States as well as senior EU civil servants,
and were critical at this stage in promoting the need for the Roadmap.
Following adoption of the roadmap, an Impact Assessment was commissioned
in preparation for issuing each proposed Directive under the Roadmap, and
the research in 3.1 and/or 3.4 was cited as a major source
of information in each of the three impact assessments published to date (5.2,
5.3, and 5.4). Further, as a result of the research, Ed
Cape was retained as an expert for the impact assessment of the proposed
Directive on Safeguards for Children and other Vulnerable Persons in
Criminal Proceedings. The lead EU civil servant responsible for major
aspects of the legislative programme, and who represented the Commission
in the negotiations, said that she `routinely used both Suspects in
Europe and Effective Criminal Defence in Europe'. She said
of the latter that it was the `"bible" for the negotiations, and certainly
when it was cited, that tended to be the end of the argument as it was
recognised as being the leading study in the field, and wholly reliable' (5.1).
The influence of the research studies is also evidenced by the fact that
the EU commissioned further research from Cape and others, `Procedural
Rights for Suspects in Police Detention in the EU: Empirical investigation
and promoting best practice' (2011 - 2013, 332,934 Euros), to develop
knowledge and understanding of how the procedural rights governed by the
Directives work in practice

4. 2.Improving policy-makers' understanding of deficiencies
in national laws, policies and practices
Professor Cape, and other members of the research teams, has been invited
to present the findings of the research at a large number of conferences
and similar events organised by the EU and government ministries,
promoting debate and influencing the implementation of European standards
concerning procedural rights amongst politicians, policy-makers and civil
servants. These include conferences organised by the German Ministry of
Justice (Berlin, 6 September 2010), the Helsinki Foundation for Human
Rights in Poland (Warsaw, 4 April 2011), the Polish Presidency of the EU
(Warsaw, 5-6 December 2011), and the Ministry of Justice of Ukraine/US
Department of Justice (Kiev, 13 December 2012)

The Carloway Review, established by the Scottish Executive to examine the
implications of the Supreme Court decision in Cadder v HMA for
Scots law and procedure, made explicit reference to the findings of the
research (3.4) in informing its understanding of defence rights in
EU Member States (5.5)

4. 3.Informing the training of judges, prosecutors and
lawyers regarding respect for and implementation of procedural rights
The body of research has been used to inform the training of judges,
prosecutors and lawyers across the European Union. Events at which
Professor Cape has been invited to present papers based on the research
include the Academy of European Law (ERA) conference Guaranteeing
Procedural Safeguards in the EU — A First Step Taken (Trier,
Germany, November 2010); the Academy for Young Judges and Prosecutors:
European Criminal Justice (ERA, Trier, Germany, January and February
2011); and the Summer Course on European Criminal Justice (ERA,
Trier, Germany, June/July 2011, July 2012 and June 2013 (attended by a
total of 272 judges, prosecutors, civil servants and lawyers from at least
23 European jurisdictions). The Chinese translation of 3.4 has
been distributed to rural legal aid lawyers in China to provide an
information resource on best practice

4. 4.Influencing the work and policy of NGOs in Europe and
other regions
The research findings have also been used by the Justicia consortium of
international NGOs in seeking to influence EU discussion on the proposed
EU Directive on the Right of Access to a Lawyer and to Communicate Upon
Arrest (5.6), and by the European Criminal Bar Association to
influence EU discussion on the proposed EU Directive on the right to legal
aid (5.7 and 5.8). The research methodology developed in the Effective
Criminal Defence in Europe study (3.4), which was designed to
be used where academic and financial resources are limited, was employed
for the further study in five eastern European countries. This was
commissioned by an NGO (Soros Foundation — Moldova) and largely
implemented by NGO employees (3.5), and used by those NGOs in their
strategic approaches to improving procedural rights. The research has
inspired, and the methodology adapted for, research by NGOs on the
procedural rights of suspects and accused persons in six Latin American
countries — Brazil, Argentina, Peru, Columbia, Guatemala and Mexico —
during 2012 to 2013. Dejusticia, the Columbian NGO that is managing the
project, has said of the two European studies (3.4 and 3.5)
that `without those publications, this regional project would not have
ensued' (5.9)

Sources to corroborate the impact

5.1A testimonial from a former legislative officer,
European Commission, Brussels, dated 10 October 2012 (refers to 4.1)